Citation Nr: 0032277
Decision Date: 12/11/00 Archive Date: 12/20/00
DOCKET NO. 98-19 587A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to the proceeds of the veteran's National Service
Life Insurance (NSLI) policy.
REPRESENTATION
M.F. represented by: Disabled American Veterans
S.N. represented by: Anthony Lewis, Attorney at Law
WITNESSES AT HEARINGS ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had unverified active military service beginning
in 1947. He died in October 1996. At the time of his death,
the veteran had a NSLI policy in force in the face amount of
$10,000.
In October 1996, the veteran's surviving spouse, M.,
requested that the proceeds of the NSLI policy be paid to
her, and this was done in November 1996. However, the
veteran's friend, S., thereafter also requested payment of
the proceeds of the NSLI policy, arguing that she was the
proper beneficiary. In November 1997, the VA Regional Office
and Insurance Center in Philadelphia, Pennsylvania,
determined that an April 1996 designation of beneficiary form
naming M., the appellant, as the sole beneficiary of the NSLI
policy, was not valid. It was determined that the last valid
beneficiary designation of record for this policy was dated
in May 1991, in which S., the appellee, was named sole
beneficiary. The appellant was asked to return the proceeds
of the life insurance policy, and she has appealed that
determination.
In March 1999, the appellant testified before the
undersigned, who is the Veterans Law Judge making this
decision and who was designated by the Chairman to conduct
that hearing pursuant to 38 U.S.C.A. § 7107(c). In July
1999, the Board remanded the case to provide the appellant an
opportunity to obtain additional forensic analysis. She was
given such an opportunity, and this case is now ready for
appellate disposition.
FINDINGS OF FACT
1. At the time of his death, the veteran had a NSLI policy
in force, in the original amount of $10,000.
2. In May 1991, the veteran designated S. as the principal
beneficiary to receive the proceeds of this policy.
3. In April 1996, VA received a beneficiary designation
form, purportedly signed by the veteran, naming M. as the
principal beneficiary to receive the proceeds of this policy.
4. The veteran did not sign the beneficiary designation form
dated in 1996.
5. There is no evidence showing that the veteran lacked
testamentary capacity at the time he signed the May 1991
change in beneficiary for his NSLI policy or that he was
subject to undue influence at the time of that change.
6. The evidence does not demonstrate that, after 1991, the
veteran intended to change the designation of the principal
beneficiary of his NSLI policy proceeds from S. to M.
CONCLUSION OF LAW
The appellant is not the last-named beneficiary of the
veteran's NSLI policy, and, thus, she is not entitled to the
proceeds of such policy. 38 U.S.C.A. § 1917 (West 1991); 38
C.F.R. § 8.22 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran died in October 1996, and the appellant, M.,
requested the proceeds of his life insurance be distributed
to her as his surviving spouse. This was done in November
1996. Payment was made to M. pursuant to an April 1996
designation of beneficiary form purportedly signed by the
veteran and identifying her as the principal beneficiary.
However, the appellee, S., also requested disbursement of the
veteran's life insurance as sole beneficiary, and she
submitted a May 1991 designation of beneficiary form signed
by the veteran and identifying her as the principal
beneficiary. VA asked both M. and S. for samples of the
veteran's handwriting and signature.
In a November 1996 statement, M. stated that she and the
veteran were separated in 1988, after which he resided with
S. She stated that in April 1996, the veteran approached her
and wanted to "make amends" concerning their prior
separation. She stated that the veteran told her that during
a time when he was drinking heavily, he had changed the
beneficiary of his life insurance policy to S., but he now
wanted to reinstate M. as the beneficiary. She stated that
the change in beneficiary was witnessed by I.N., a long-time
friend of both M. and the veteran. She was unable to provide
any other examples of the veteran's signature due to a fire
in her home.
In a November 1996 statement, S. maintained that M. had a
past history of forging the veteran's signature and diverting
monetary amounts from the veteran to herself. S. stated that
in June 1996 the veteran wanted to ensure that no changes had
been made in his life insurance beneficiary, and he had
contacted the local VA office to confirm that S. was the
named beneficiary. S. submitted a copy of a letter from VA
to the veteran dated in June 1996 indicating that enclosed
was a copy of the most recent beneficiary designation form,
but the letter did not state the date the form was signed so
it is not known whether the 1991 or 1996 form was originally
enclosed with the letter. S. argued that the veteran did not
sign the 1996 beneficiary form, and she provided examples of
the veteran's handwriting.
The 1991 beneficiary designation form was witnessed by K.H.
The 1996 beneficiary designation form was witnessed by I.N.
The appellant stated that she was unable to locate I.N. In
January 1997, the appellant submitted a sworn statement from
J.H., which indicated that J.H. was present when the veteran
changed his beneficiary in April 1996 and that she saw him
sign that document. J.H. submitted another statement in May
1997 stating that she did not know the veteran prior to the
1996 incident, but she had known the appellant as a friend
and neighbor. She stated that she witnessed the veteran
complete and sign the change of beneficiary form in San Diego
in 1996. The veteran was alert and did not appear
intoxicated or under the influence of medication. She stated
that the veteran made it clear to the appellant that he was
apologetic for the past. She stated that I.N. was visiting
San Diego, and the appellant and the veteran had made
arrangements to meet with her. J.H. accompanied the
appellant to San Diego, and it was there that she met I.N.
and the veteran.
In January 1997, the appellant submitted a copy of an
agreement signed by her and the veteran when they separated.
It is undated, although it mentions monetary payments to
begin in July 1992. This agreement indicated, in part, that
the appellant would be retained as the beneficiary on the
veteran's NSLI policy.
The veteran's son submitted a statement in March 1997 to the
effect that the veteran stated during his final illness that
his wife would be provided for and that the veteran had
always assured his wife, the appellant, that she would
receive all his insurance and military benefits should
anything happen to him.
In a May 1997 statement, the appellee stated that the veteran
did not leave Mexico and visit California at any time between
mid January and late May or early June of 1996.
In April 1997, VA's Office of Inspector General (OIG)
conducted forensic analysis of fifteen documents signed by
the veteran between 1957 and 1996, including the two
beneficiary forms. Based upon this analysis, OIG concluded
that the veteran could not be identified or eliminated as the
signature on the 1996 beneficiary designation form. It was
requested that additional documents be obtained for
comparison.
Additional examples of the veteran's signature were obtained,
to include VA medical records that he signed in 1996. In
October 1997, OIG conducted forensic analysis of the
additional evidence. Based upon this analysis, OIG concluded
that the veteran did not sign the 1996 beneficiary
designation form. The veteran's known signatures, prior to
and since the April 1996 beneficiary form, were consistent
with each other, but not with the beneficiary form. Although
a medical record the veteran signed in September 1996 showed
marked deterioration, which could be expected due to illness,
the letter forms, slant, and height ratios of the letters
were basically the same when compared to the veteran's prior
signatures.
In November 1997, the appellant was advised that her claim
for the proceeds of the veteran's life insurance was denied
and that the appellee was entitled to the insurance.
In April 1998, the appellant had a personal hearing at the RO
in San Diego. Her representative disagreed with OIG's
conclusion that the 1996 signature was a forgery, arguing
that there was no supporting rationale for that conclusion.
The representative further argued that signatures change over
time and submitted additional writing samples from the
veteran.
The appellant testified that she was present in 1996 when the
veteran signed the beneficiary designation form. She stated
that she did not know the veteran had designated the appellee
as the beneficiary of his insurance until he told her he had
done so, but that he wanted to change it back to the
appellant. She stated that the veteran had been a heavy
drinker, and she believed that he was under the influence of
alcohol when he had changed the life insurance beneficiary to
the appellee. She also stated that perhaps because of the
medication the veteran was taking during chemotherapy, his
handwriting was affected.
J.H. testified that she was also present in 1996 when the
veteran signed the beneficiary designation form. She stated
that the veteran wanted to make amends with the appellant.
When asked if she knew for a fact that it was actually the
veteran who signed the document, she stated that the
appellant introduced him as her husband. That was the first
and only time J.H. ever saw the veteran.
The appellee was provided notice of the 1998 hearing in
accordance with 38 C.F.R. § 20.713(a). After receiving the
transcript from the 1998 hearing, the appellee submitted a
statement in August 1998. S. emphasized that J.H. had never
seen the veteran prior to witnessing him sign the April 1996
change in beneficiary form; it was merely that the appellant
had introduced him as the veteran. S. again stated that the
veteran was not out of Mexico during that time period. She
stated that the veteran discontinued his use of alcohol in
1992, and there was no time during which he was not aware of
his actions and their consequences. She also stated that the
veteran never underwent chemotherapy, since his cancer was
not diagnosed until shortly before his death.
The appellee submitted statements from D.H. and K.H. D.H.
knew both the appellant and the veteran. The veteran had
told D.H. that the appellee would get his life insurance
proceeds. The veteran wanted this known because the
appellant had changed the beneficiary with a forged
signature. K.H. had witnessed the May 1991 beneficiary
designation. She stated that at the time of the veteran's
death, he still wanted his benefits to go to the appellee.
In March 1999, the appellant had a hearing before the
undersigned. Her representative argued that she was entitled
to the benefit of the doubt, since the first OIG analysis was
inconclusive. M. testified that she was married to the
veteran at the time of his death and that it was her
responsibility to make the final arrangements. The appellant
stated that she would like to investigate the possibility of
hiring her own handwriting expert. She maintained that OIG
had made a mistake.
The appellee was provided notice of the 1999 hearing in
accordance with 38 C.F.R. § 20.713(a). After receiving the
transcript from the 1999 hearing, the appellee submitted a
statement in August 1999. S. stated that the only issue in
this case was whether the veteran had signed the 1996 change
in beneficiary form. OIG had concluded that he had not, and
the appellant had offered no evidence to the contrary.
In July 1999, the Board remanded this case to provide the
appellant an opportunity to obtain another forensic expert's
review. In January 2000, the forensic expert she hired
reviewed the file and made photocopies of pertinent
documents. Although the expert stated that he would submit
his report to VA, he did not do so. VA attempted to contact
him through his employer, with no success. VA also requested
a copy of the report from the appellant. In May 2000, the
appellant stated that the expert's report had been sent
directly to her, but his results were inconclusive. She did
not submit the report to VA. Instead, she submitted a
statement from I.N., now known as I.D., who had witnessed the
veteran's signature on the 1996 change of beneficiary form.
I.D. stated that the veteran told her he wanted to change his
insurance and he needed someone to witness his signature.
VA requested additional information from I.D. She responded
that she was a friend of the veteran and the appellant. The
veteran had asked her to witness the document. He was alert
and clear, with no indication that he was under the influence
of alcohol or medication. The veteran had told her that he
was wrong and wanted to change his insurance.
II. Legal Analysis
A National Service Life Insurance policy is a contract
between the veteran and the Federal Government which assigns
legally binding duties and responsibilities to each party.
Wolfe v. Gober, 11 Vet. App. 1, 2 (1997). As the insurer,
the United States promises to pay the proceeds of the NSLI
policy to whomever the veteran designates as the beneficiary
or beneficiaries of the policy proceeds.
The veteran, as the insured party, possesses the right to
designate the beneficiary or beneficiaries of the policy, and
at all times enjoys the right to change the beneficiary or
beneficiaries without knowledge or consent of such
beneficiary or beneficiaries. 38 U.S.C.A. § 1917; 38 C.F.R.
§ 8.22; see also Wissner v. Wissner, 338 U.S. 655, 658
(1950), and Young v. Derwinski, 2 Vet. App. 59 (1992).
Attempts by a veteran to change beneficiaries are liberally
construed by reviewing courts so as to effectuate the
veteran's intent, with a two-prong test being used to
determine if an actual change of beneficiaries has taken
place. First, there must be evidence of an intention on the
part of the veteran to change the beneficiary, and second,
there must be some overt act done to effectuate that intent.
See Young, 2 Vet. App. at 61; Jones v. Brown, 6 Vet. App.
388, 390 (1994); Curtis v. West, 11 Vet. App. 129, 133
(1998).
Assuming the above criteria are met, a change of beneficiary
designation may nonetheless be invalid, if it is determined
that the insured lacked "testamentary capacity" at the time
of the disputed change of beneficiary. Testamentary capacity
is that degree of mental capacity necessary to enable a
person to perform a testamentary act. 38 C.F.R. § 3.355.
There is a general, but rebuttable presumption that every
testator possesses testamentary capacity. 38 C.F.R. § 3.355.
The burden of proving lack of testamentary capacity lies with
the person so contesting. See, e.g., In re Estate of
Fritschi, 60 Cal. 2d 367 (1963). To rebut this presumption
of testamentary capacity established by section 3.355(c), the
contestant must show a lack of testamentary capacity by a
preponderance of the evidence. Elias v. Brown, 10 Vet. App.
259 (1997).
The law also provides that a beneficiary designation may be
invalid if there is undue influence placed upon an insured to
change the beneficiary of his policy. Generally, "undue
influence" which will nullify a change of beneficiary is
that influence or pressure, as exercised at the time and
under the facts and circumstances of the case, which destroys
the free agency of the testator, and substitutes in the place
thereof, the will of another. In re Estate of Hinde, 200
Cal. 710 (1927); see also Fritschi. Before a testament can
be set aside on the grounds of undue influence, the
contestant must prove that the influence complained of
amounted to coercion that destroyed the testator's free
agency and that the circumstances were inconsistent with a
voluntary action on the part of the testator. In re Estate
of Sarabia, 221 Cal. App. 3d 599 (1990). The mere
opportunity to influence the mind of the testator, even
coupled with an interest or a motive to do so, is not
sufficient to show undue influence. Id.; see also In re
Estate of Callahan, 67 Cal. 2d 609 (1967). The presumption
of undue influence arises only if all of the following
elements are shown: (1) the existence of a confidential
relationship between the testator and the person alleged to
have exerted undue influence; (2) active participation by
such person in the actual preparation or execution of the
will, such conduct not being of a merely incidental nature;
and (3) undue profit accruing to that person by virtue of the
will. Id.
In Fagan v. West, 13 Vet. App. 48 (1999), the United States
Court of Appeals for Veterans Claims (Court) summarized its
NSLI case law, as well as NSLI case law from other Federal
courts. The Court stated that the following test could be
drawn from those cases.
First, a person seeking to show that the
NSLI insured veteran had effected a
beneficiary change [hereinafter "the
claimant"] may prevail by proving that
the insured veteran complied with the
regulations in filing a valid change of
beneficiary with VA. [Citations omitted.]
Second, if this cannot be shown, then, in
order to prevail, the claimant must prove
by clear and convincing evidence that the
insured veteran intended that the
claimant should be the beneficiary and
also prove that the insured veteran took
an overt action reasonably designed to
effectuate that intent. [Citations
omitted.] Third, if the insured
veteran's intent cannot be proven by
clear and convincing evidence, then the
claimant must prove the insured veteran's
intent by a preponderance of the evidence
and must also prove that the insured
veteran did everything reasonably
necessary, or at least everything he or
she subjectively and reasonably believed
was necessary, to effectuate his
intention. [Citations omitted.]
Fagan, 13 Vet. App. at 57.
38 C.F.R. § 8.22 unambiguously states that an effective
change of beneficiary must be in writing and "signed by the
insured." It is clear that if the veteran did, in fact,
sign the April 1996 beneficiary designation form, he would
have successfully changed the beneficiary on his NSLI policy.
The existence of the signed letter would be evidence of an
intention to change the beneficiary, and the signing and
mailing of the letter would constitute overt acts taken to
effectuate this intent. However, in this case, there is a
dispute as to whether the veteran actually signed the April
1996 form which designated the appellant as the beneficiary
of the NSLI proceeds, and the determinative issue before the
Board is whether the veteran's signature on the 1996 form is
authentic.
Regarding the signature of the veteran on the beneficiary
designation purportedly signed in April 1996, handwriting
analyses conducted by the VA OIG have concluded that the
veteran did not write the signature. The appellant contends
that a mistake was made. However, she has submitted no
objective evidence to support that contention. Pursuant to
her request, she was given an opportunity to have a forensic
expert of her own choosing examine the pertinent documents in
the record. She availed herself of that opportunity and
retained a private forensic expert who performed such an
analysis. There is no indication that the private expert's
analysis was less than full and complete, not has it been
contended otherwise. VA attempted to obtain a copy of the
report, which was provided directly to the appellant. The
appellant declined to submit a copy of that report for
inclusion in the record. Instead, she stated that the
private expert's report was inconclusive. Hence, there is no
expert opinion of record that supports her contention that
the signature at issue is that of the veteran. On the
contrary, the expert forensic analysis of record - as
provided by the final VA OIG report - is that the veteran did
not sign the 1996 designation of beneficiary form. The VA
OIG is disinterested in the outcome of this case. Its
forensic expertise has not been challenged by any objective,
competent evidence or conflicting expert opinion.
Accordingly, the VA OIG's expert analyses and conclusion as
to the inauthenticity of the signature on the 1996
beneficiary is afforded great probative value.
The appellant has presented testimony, as well as lay
statements, in support of the claim that the veteran wanted
to make her the beneficiary of his NSLI policy and that he
did, in fact, sign a change of beneficiary form in favor of
the appellant in April 1996. As a general matter, in order
for any testimony to be probative of any fact, the witness
must be competent to testify as to the facts under
consideration. See Espiritu v. Derwinski, 2 Vet. App. 492
(1992); Layno v. Brown, 6 Vet. App. 465 (1994). A witness
must have personal knowledge in order to be competent to
testify to a matter. Competent testimony is thus limited to
that which the witness has actually observed, i.e., to that
which is within the realm of his personal knowledge as
distinguished from opinions or conclusions drawn from such
facts.
In this regard, it must be noted that one of the witnesses,
J.H., did not personally know the veteran and had never met
him prior to observing the individual introduced to her as
the veteran sign the 1996 beneficiary designation form.
Therefore, since she has no personal knowledge that that
individual was, in fact, the veteran, her testimony is not
competent to establish such a fact.
As for the arguments from the appellant's representative that
a person's signature changes over time, the Board notes that
VA OIG reviewed examples of the veteran's signatures and
handwriting between 1957 to 1996, a considerable period of
time. VA OIG concluded that there were sufficient examples
of the veteran's handwriting to make a determination as to
the authenticity of the veteran's signature on the April 1996
beneficiary designation form. There is no expert opinion
holding otherwise. Also, as for the appellant's suggestion
that the veteran was taking medication in 1996 that affected
his handwriting, that argument is not persuasive. First, she
has submitted no expert evidence establishing that this was
the case. Second, VA OIG, when examining examples of the
veteran's handwriting shortly before his death, considered
the fact that illness had affected the veteran's handwriting,
but VA OIG was still able to conclude that the veteran had
not signed the April 1996 beneficiary designation form.
If the veteran did not sign the 1996 designation of
beneficiary, it is invalid to effectuate a change in
beneficiary. See Curtis, 11 Vet. App. at 133 ("The validity
of [a] beneficiary change is decided under federal law which
requires a change of NSLI beneficiary to be signed by the
veteran. The record shows that it was the appellant, not the
veteran, who signed the change in beneficiary form and
therefore the change was not valid."). It is concluded that
the weight of the evidence shows that the veteran did not
sign the 1996 beneficiary designation. Accordingly, the May
1991 form, identifying the appellee as the principal
beneficiary of the veteran's life insurance proceeds, is the
last valid designation made during his lifetime, and the
appellee is entitled to the life insurance proceeds.
The appellant has also argued that the 1991 designation of
beneficiary was invalid either (a) because the veteran made
statements and took actions indicating his intent to leave
the NSLI proceeds to her, and/or (b) because the veteran was
drinking alcohol heavily in 1991 and the change of
beneficiary was invalid because he was under the influence.
As for the first argument, the appellant could prove, by
clear and convincing evidence, that the veteran intended that
she should be the beneficiary and that he took overt action
reasonably designed to effectuate that intent. As for the
second argument, the appellant could prove, by a
preponderance of the evidence, the veteran's intent and that
he did everything reasonably necessary, or at least
everything he subjectively and reasonably believed was
necessary, to effectuate his intention. See Fagan.
In this case, the veteran's intent to make M. the beneficiary
of his NSLI policy has not been shown by clear and convincing
evidence. There are contradictory statements from
individuals who knew the veteran as to what his intentions
were concerning his life insurance policy. The evidence of
his intent is conflicting and inconclusive and falls far
short of the evidentiary threshold.
Here, the primary evidence of the veteran's intent to
designate the appellant as the principal beneficiary of his
NSLI proceeds are her own statements and those of her friends
and relatives. However, these statements have little
probative value for the following reasons. First, the
appellant is far from a disinterested party. Second, her
credibility, as well as that of I.D., in insisting that the
veteran signed the 1996 designation of beneficiary form is
undercut by disinterested expert forensic evidence that
clearly shows otherwise. As discussed above, J.H.'s
testimony on this issue was not competent evidence since she
did not know the veteran personally. The assertions of the
appellant and her supporters are contradicted by statements
by the appellee, who also has a stake in the outcome, and her
supporters. Hence, the evidence of record does not
demonstrate that it was the veteran's intent to change the
beneficiary of his NSLI policy proceeds from S. to M.
Even if it were shown that the veteran intended to M. the
beneficiary, she would need to show that the veteran did
everything he believed necessary to make her the beneficiary.
It is contended, in effect, that the veteran understood that
the completion of the beneficiary designation form in favor
of M. was what was required to effect his intent and that he
accomplished this by preparing the change of beneficiary in
favor of M. in April 1996. There is little credible evidence
of an affirmative act on the part of the veteran to make M.
the beneficiary. As discussed at length above, the weight of
the evidence shows that he did not sign the 1996 beneficiary
designation form. Therefore, as discussed above, it cannot
reasonably be concluded that he did what he believed
necessary - or anything at all - to make M. the principal
beneficiary after he named S. the beneficiary in 1991.
As indicated above, there is a general presumption that the
veteran had the capacity to execute a change of beneficiary,
and any reasonable doubt will be resolved in favor of
testamentary capacity. 38 C.F.R. § 3.355(c). To rebut the
presumption, the appellant must show a lack of testamentary
capacity by a preponderance of the evidence. The appellant
has offered no such evidence in this case. She was not
present when the 1991 designation of beneficiary form was
completed, so she has no personal knowledge as to the
veteran's state of mind at that time. She has submitted no
medical evidence as to the veteran's mental capacity around
the time that the 1991 designation of beneficiary form was
completed.
Although it may be true that the veteran consumed alcohol in
1991, and his VA records do indicate that he did drink
heavily until 1992, such a fact does not mean that he was
incapable of changing his life insurance beneficiary at the
time that he did so in May 1991. There are degrees of mental
unsoundness or mental weakness, and not every degree of
mental unsoundness or mental weakness is sufficient to
destroy or overturn a testamentary instrument. The key to
the existence of testamentary capacity is the ability to
comprehend the nature, extent, and disposition of one's
estate and the person's relationship to those who have or
might have a claim to his or her bounty. In this case, the
appellant's suggestion that the veteran must have been under
some influence in 1991, standing alone, is insufficient to
rebut the presumption of testamentary capacity. See, e.g.,
In re Estate of Fisher, 202 Cal. 205 (1927) ("The
intemperate use of alcoholic beverages, if continued for a
sufficient length of time, may destroy testamentary capacity.
Nevertheless, in the absence of proof that the intemperate
use has actually destroyed testamentary capacity, no
presumption will be indulged, however long continued the
habit is shown to have been, that it has thus been
destroyed.") Aside from her own allegations, the appellant
has not submitted any evidence from disinterested witnesses
to show that undue influence was used to change the
beneficiary to S. While S. may have had the opportunity to
exert influence based on her relationship with the veteran, a
mere allegation is not sufficient proof that undue influence
or fraud was actually performed.
As for the argument from the appellant's representative that
the benefit of the doubt should be resolved in her favor,
there are actually two claimants in this case, the appellant
and the appellee, and the benefit of the doubt rule does not
apply in this situation. Elias, 10 Vet. App. at 263.
Furthermore, the party claiming that the veteran intended to
change his life insurance beneficiary has the burden of
proving such a fact. Fagan, 13 Vet. App. at 53. Since the
1991 beneficiary designation form has been deemed valid, that
means that the appellant has the burden of proving that the
veteran thereafter intended to change the beneficiary or that
the 1991 designation was otherwise invalid. She has not
maintained her burden of showing either that the veteran
actually intended that she receive the proceeds of the NSLI
policy or that the veteran lacked the necessary mental
capacity to make a testamentary act in 1991 or was otherwise
unduly influenced.
The appellant has also submitted an agreement between her and
the veteran indicating, in part, that although separated, he
would retain her as the beneficiary on his NSLI policy. That
document does not, however, change the result in this case.
"It is well settled that '[p]olicies of [NSLI] are contracts
of the United States and possess the same legal incidence as
other Government contracts. The terms are to be construed by
Federal and not by State law." Wolfe, 11 Vet. App. at 2
(quoting Dyke v. Dyke, 122 F. Supp. 529, 535 (E.D. Tenn. N.D.
1954)). Under the Supremacy Clause, even a state divorce
decree could not bar a veteran from exercising his right
under federal statutes to change the beneficiary of his NSLI
policy. Id. Therefore, despite what he may have promised
the appellant, the veteran remained free, under federal law,
to change the beneficiary for his NSLI policy.
Finally, the equity and fairness of the veteran's choice in
naming a beneficiary are not part of the legal criteria or
requirements upon which to decide who may be entitled to the
proceeds of the insurance policy. Whether the appellant was
actually married to the veteran or responsible for his final
expenses is immaterial to the question of who is entitled to
the proceeds of his NSLI policy. The proceeds of the
policy are not subject to equitable or legal process or
attachment. 38 U.S.C.A. § 5301.
ORDER
The appellant is not the last-named beneficiary of record and
is not entitled to any of the proceeds of the veteran's
National Service Life Insurance policy. Accordingly, the
appeal is denied.
STEVEN L. KELLER
Veterans Law Judge
Board of Veterans' Appeals